Citation Nr: 0526781
Decision Date: 09/30/05 Archive Date: 10/17/05
DOCKET NO. 04-10 940 ) DATE
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On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) in
Columbia, South Carolina
THE ISSUES
1. Entitlement to a compensable rating for hemorrhoids.
2. Entitlement to an initial disability rating in excess of
30 percent for depression.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESSES AT HEARING ON APPEAL
Appellant and spouse.
ATTORNEY FOR THE BOARD
T. L. Konya, Associate Counsel
INTRODUCTION
The veteran served on active duty from June 1973 to June
1993.
This case comes to the Board of Veterans' Appeals (Board) on
appeal from a March 2003 decision by the RO in Columbia,
South Carolina, which in pertinent part, confirmed and
continued a noncompensable rating for service-connected
hemorrhoids. This case is also on appeal from a December
2003 decision which granted service connection and a 30
percent rating for depression.
In July 2005 the veteran was afforded a videoconference
hearing before the undersigned Acting Veterans Law Judge. A
transcript of the hearing has been obtained and associated
with the claims folder.
The appeal is REMANDED to the RO via the Appeals Management
Center (AMC), in Washington, DC. VA will notify you if
further action is required on your part.
REMAND
During the veteran's July 2005 videoconference hearing, he
testified that on May 16, 2004, he underwent surgery on his
hemorrhoids at Moncrief Army Hospital in Fort Jackson, South
Carolina. A review of the veteran's claims folder reveals
that the records associated with the referenced procedure
have not been included with the claims folder. VA has an
obligation to obtain those treatment records. 38 U.S.C.A.
§ 5103A(c)(3) (West 2002).
Additionally, the veteran testified that he underwent a
colonoscopy approximately 6 months prior at the Columbia,
South Carolina VA Medical Center (VAMC). During the
procedure, he was informed that his internal hemorrhoids were
bleeding. Though the claims file contains VA medical
records, the most recent record of treatment is dated in
October 2002. VA has an obligation to obtain the treatment
records dated from October 2002 to the present. 38 U.S.C.A.
§ 5103A(c)(2) (West 2002).
In regards to the veteran's claim of entitlement to an
initial rating in excess of 30 percent for depression, he
last underwent a comprehensive VA psychiatric examination in
November 2003. At his hearing, he contended that his
symptoms have worsened since that time. A veteran is
entitled to a new VA examination where there is evidence that
the condition has worsened since the last examination.
Snuffer v. Gober, 10 Vet. App. 400 (1997).
In regards to the veteran's service-connected hemorrhoids,
the February 2003 VA examination report on file does not
contain adequate findings for rating purposes.
Specifically, the examiner did not comment as to whether the
hemorrhoids were severe, caused persistent bleeding with
secondary anemia, or were large or thrombotic, irreducible,
with excessive redundant tissue, evidencing frequent
recurrences; or resulted in moderate or mild impairment.
Without this information the Board is unable to fully rate
the veteran's hemorrhoid disorder.
In addition, in Caffrey v. Brown, 6 Vet. App. 377 (1994), the
U.S. Court of Veterans Appeals (now the U.S. Court of Appeals
for Veterans Claims) (Court) stated that a medical
examination conducted in furtherance of VA's duty to assist
"must consider the records of prior medical examinations and
treatment in order to assure a fully informed examination."
Id. at 381 (citing Waddell v. Brown, 5 Vet. App. 454 (1993)).
Consideration of such records is especially important in the
context of an increased rating case because of VA's duty to
take into account the veteran's entire medical history and
circumstances when making determinations as to the
appropriate rating to be assigned. In the February 2003
examination report pertaining to the veteran's hemorrhoid
disorder, the examiner specifically noted that the veteran's
claims folder was not available for review. Therefore, on
remand, the examiner should specifically note review of the
veteran's claims folder.
The veteran is hereby notified that it is his responsibility
to report for all examinations and to cooperate in the
development of the claims, and that the consequences for
failure to report for VA examination without good cause may
include denial of the claims. 38 C.F.R. §§ 3.158, 3.655
(2004). In the event that the veteran does not report for
any ordered examination, documentation should be obtained
which shows that notice scheduling the examination was sent
to the last known address. It should also be indicated
whether any notice that was sent was returned as
undeliverable.
In view of the foregoing, this case is REMANDED to the RO for
the following:
1. The RO should obtain medical records
for the veteran from the Columbia, South
Carolina VAMC for the period from
October 2002 to the present.
2. The RO should also contact Moncrief
Army Hospital in Fort Jackson, South
Carolina, and request that facility to
provide copies of all medical records
for the veteran documenting treatment
for his hemorrhoids from May 2004 to the
present.
3. Thereafter, the RO should schedule
the veteran for VA medical examinations
to assess the severity of his service-
connected hemorrhoids and depression.
All indicated tests and studies are to
be performed. Prior to the
examinations, the claims folder must be
made available to the physicians for
review of the case. A notation to the
effect that this record review took
place should be included in the
examination reports.
Hemorrhoids
The examiner should describe the
severity of the veteran's hemorrhoids;
that is, whether the hemorrhoids are
severe, causing persistent bleeding and
with secondary anemia, or with fissures,
or are large or thrombotic, irreducible,
with excessive redundant tissue,
evidencing frequent recurrences; or
result in moderate or mild impairment.
The examiner's report should provide all
current complaints, symptoms, clinical
findings, manifestations, and diagnoses
referable to hemorrhoids. The examiner
should also provide an opinion
concerning the impact of the veteran's
hemorrhoid disorder on his ability to
work.
All findings should be reported in
detail. A complete rationale for any
opinion expressed must be provided.
Depression
The interview should include
information regarding social and
occupational functioning. The
psychiatrist should indicate with
respect to each of the psychiatric
symptoms identified under the schedular
criteria for rating mental disorders
whether such symptom is a symptom of
the veteran's service-connected
depression. The psychiatrist should
provide a Global Assessment of
Functioning (GAF) scale score, and
indicate which of the following
paragraphs (a, b, c, d, e, or f) best
describes the veteran's psychiatric
impairment:
a. Total occupational and social
impairment, due to such symptoms as:
gross impairment in thought
processes or communication;
persistent delusions or
hallucinations; grossly
inappropriate behavior; persistent
danger of hurting self or others;
intermittent inability to perform
activities of daily living
(including maintenance of minimal
personal hygiene); disorientation to
time or place; memory loss for names
of close relatives, own occupation,
or own name.
b. Occupational and social
impairment, with deficiencies in
most areas, such as work, school,
family relations, judgment,
thinking, or mood, due to such
symptoms as: suicidal ideation;
obsessional rituals which interfere
with routine activities; speech
intermittently illogical, obscure,
or irrelevant; near-continuous panic
or depression affecting the ability
to function independently,
appropriately and effectively;
impaired impulse control (such as
unprovoked irritability with periods
of violence); spatial
disorientation; neglect of personal
appearance and hygiene; difficulty
in adapting to stressful
circumstances (including work or a
worklike setting); inability to
establish and maintain effective
relationships.
c. Occupational and social
impairment with reduced reliability
and productivity due to such
symptoms as: flattened affect;
circumstantial, circumlocutory, or
stereotyped speech; panic attacks
more than once a week; difficulty in
understanding complex commands;
impairment of short- and long-term
memory (e.g., retention of only
highly learned material, forgetting
to complete tasks); impaired
judgment; impaired abstract
thinking; disturbances of motivation
and mood; difficulty in establishing
and maintaining effective work and
social relationship.
d. Occupational and social
impairment with occasional decrease
in work efficiency and intermittent
periods of inability to perform
occupational tasks (although
generally functioning
satisfactorily, with routine
behavior, self-care, and
conversation normal), due to such
symptoms as: depressed mood,
anxiety, suspiciousness, panic
attacks (weekly or less often),
chronic sleep impairment, mild
memory loss (such as forgetting
names, directions, recent events).
e. Occupational and social
impairment due to mild or transient
symptoms which decrease work
efficiency and ability to perform
occupational tasks only during
periods of significant stress, or;
symptoms controlled by continuous
medication.
f. A mental condition has been
formally diagnosed, but symptoms are
not severe enough either to
interfere with occupational and
social functioning or to require
continuous medication.
All findings should be reported in
detail. A complete rationale for any
opinion expressed must be provided.
4. Thereafter, the RO must review the
claims folder and ensure that the
foregoing development actions, as well as
any other development that may be in
order, has been conducted and completed
in full. The RO should review the
examination reports to ensure that they
are in complete compliance with the
directives of this REMAND. If the
reports are deficient in any manner, the
RO must implement corrective procedures
at once.
5. The RO should then prepare a new
rating decision and readjudicate the
issues on appeal. The RO should also
consider whether the case should be
referred to the Director of the
Compensation and Pension Service for
extra-schedular consideration.
6. If the benefits sought on appeal are
not granted to the veteran's
satisfaction, the RO must issue a
supplemental statement of the case, and
provide the appellant with an opportunity
to respond.
After the veteran has been given an opportunity to respond to
the supplemental statement of the case, the case should be
returned to the Board for further appellate consideration, if
otherwise in order. By this remand, the Board intimates no
opinion as to any final outcome warranted. No action is
required of the veteran until he is notified by the RO. The
veteran has the right to submit additional evidence and
argument on the matters the Board has remanded to the RO.
Kutscherousky v. West, 12 Vet. App. 369 (1999).
_________________________________________________
Thomas H. O'Shay
Acting Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the
Board is appealable to the Court. This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of your appeal.
38 C.F.R. § 20.1100(b) (2004).